Frequently Asked Legal Questions
1. What is a guardianship?
A guardianship consists of a court order that allows one party to meet the physical and/or financial needs of another party. It does not require the guardian to spend their own funds to support the party but simply requires the guardian to manage the other party’s assets for them if they have a guardianship over the estate. In regard to a guardianship over the person of the ward, the court simply requires the guardian to be responsible for the physical care of the other individual, similar to a parent over a child. The guardian is not necessarily required to provide the physical care themselves. For instance, the guardian may place the ward in a nursing home or special facility to meet their individual needs.
2. How long does a guardianship last?
The guardianship lasts so long as the need upon which it is based continues. Therefore, a guardianship over a minor would typically end when the minor reaches the age of 18. A guardianship over an incapacitated person would continue so long as the individual is disabled. The court may terminate the guardianship at any time on the motion of the individual who is the subject of the guardianship. Additionally, if a third party believes that the guardian is not properly performing their duties, they can intervene in the case and ask that the court name a new guardian.
3. If I agree that someone else can be guardian over my children, may I get my children back at any time?
No. At such time as you agree to a guardianship over your children, it would be incumbent upon you to prove to the court that it is no longer in their best interest to be cared for by the other individual. You would need to go to court and ask that the guardianship be terminated. Certainly, if you and the guardian agree that the guardianship should be terminated, the court will grant the termination.
1. What does paternity mean?
Paternity is a legal proceeding whereby the legal rights of a child born out of wedlock are determined. The legal rights of the parents would include custody, parenting time, and child support.
2. Who files a paternity suit?
Either the mother or the father may file the action either in their own name or for the benefit of the child.
3. Does the court always order a blood test or DNA test to determine paternity?
No. If the parties agree that the named father is in fact the father, the court will not order a test. However, either party has the right to a test if they request it and they cannot agree as to the paternity.
4. How does the court determine who gets custody?
The court will look to the same criteria for custody in a paternity case that it does in a divorce. Factors such as the age and sex of the child, interaction between the parents, siblings, and other individuals, and the relationship of the child to their home, school and community would be factors that the court will consider. The court will make a determination as to what is in the best interest of the child in considering these factors.
5. How does the court determine how much time the non-custodial parent spends with the child?
The court will rely heavily on the Indiana Parenting Time Guidelines to make this determination. However, the court will also consider unique factors in each case to deviate from those guidelines if it fees appropriate. The Indiana Parenting Time Guidelines can be found on the internet at no cost.
6. How does the court determine child support in a paternity case?
The court makes the determination regarding child support in a paternity case just like it does in a divorce case. It will rely heavily on the Indiana Child Support Guidelines but will also consider unique factors if it believes it should deviate from those guidelines.
Wills and Estates
1. Does an estate always have to be opened when a person dies?
No. An estate only needs to be opened if the individual owned assets in their individual name that exceed $50,000.00. Jointly held assets are not considered part of that $50,000.00. Additionally, things like insurance policies are not considered when determining whether an estate needs to be opened.
2. Does an estate have to be opened any time an individual dies with a Will?
No. Any individual who is in the possession of the Will of a decedent must file it with the probate clerk’s office. However, the same consideration still applies as to whether an estate needs to be opened. A determination must be made as to whether the individual who had the Will had assets in their individual name exceeding $50,000.00.
3. Is it expensive to open an estate?
If it is determined that an estate must be administered through the courts that will increase the cost related to handling your loved one’s final affairs. However, it is typically prudent to call several law firms when hiring a firm to handle your loved one’s estate. Firms charge differently regarding administration of estates.
Our firm typically charges by the hour for estate related services. Some firms charge a percentage of the estate. Unless the estate is small, it is typically less expensive to pay an attorney by the hour to handle the estate rather than pay a percentage of the total estate. By charging by the hour, the fee only increases if the amount of work increases, not just because the estate is large.
4. How long does it take to finalize the affairs of my loved one?
The time it takes to finalize estate matters varies greatly. It depends on the complexity of the assets owned by the person in their individual name. If those assets need to be liquidated than obviously the cost related to the sale will cause increased time and expense related to the estate. Some assets cannot be divided without being liquidated such as real estate unless one heir wants to buy the other heir out. The attorney should be able to give you an idea of how long it will take to finalize the estate once he knows what assets are included in it.
5. Do we have to follow the terms of an individual’s Will?
If the Will is properly executed it may not be ignored and is binding upon the death of the individual that executed it. Only in the case where heirs agree not to follow the terms of the Will may that be done. It usually involves an heir renouncing their interest in the estate of the decedent. Sometime this is done for tax reasons or personal reasons but the attorney should be advised immediately if the parties intend to engage in this fairly unusual procedure.
6. What happens if a person dies without a Will?
The decedent’s assets would then be divided pursuant to the laws of intestate succession. The Indiana legislature has enacted statutes that basically describe the next of kin to a decedent for purposes of dividing that individual’s property without the benefit of a Will. The absence of a Will does not result in assets being given to the State of Indiana as many people have believed over the years.
7. Can I change my Will after I sign it?
Yes. A Will can always be destroyed by simply tearing it up which renders it ineffective. It can also be revoked by execution of a substitute Will at any time. It may also be revoked by simply writing a document saying I hereby revoke my prior Will. Typically Wills are changed as a result of an individual writing a totally new Will. However, a Will can be changed by executing what is called a Codicil which is an amendment to the Will changing only a portion of the Will. That document should be kept with the original Will and identified as the Codicil to the original Will.
8. Should I sign anything other than a Will?
After you have conferred with an attorney that practices estate planning, he or she will advise you as to whether any other documents would be appropriate. For simple estates many times a simple Will, coupled with a Power of Attorney and Health Care Representative will be adequate. However, the attorney may advise you regarding the use of a trust that can be revoked as well as trusts that cannot be revoked. He may also advise you to change the ownership of assets so that they will pass automatically to the heir upon the death of the current owner. A detailed conference with the attorney will allow him to advise you as to what documents should or should not be executed.
1. Can one spouse divorce the other if the other does not want to be divorced?
Yes. As long as the court determines that the marriage has reached an irretrievable breakdown and there is no chance of reconciliation, it will grant the divorce. The parties do not have to agree on this conclusion, simply one party testifying under oath that that is the current state of the marriage will be adequate for the court to grant the divorce over the objection of the other party.
2. If I cannot support myself how will I support myself during the divorce?
Indiana provides that one spouse can be required to support the other spouse while the divorce is pending. However, Indiana does not have alimony and therefore after the divorce, typically one spouse would not support the other. There are exceptions to this under the maintenance statute which allows the court to order one spouse to provide maintenance for the other spouse under limited circumstances such as disability of the spouse, or rehabilitative maintenance by providing education for the other spouse.
3. Can I provide protection from a violent spouse during the divorce?
Yes. The Court has the ability to grant a restraining order preventing one party from having contact with the other if violence is an issue. Furthermore, one party may file a protective order against the other party and the court will consolidate the protective order action with the divorce to provide protection for the other spouse.
4. What is the difference between a restraining order and a protective order?
A restraining order is enforced by order of the civil court. A protective order is enforced by the filing of a criminal action for invasion of privacy. The net effect of both actions are not very different. The court simply uses either the restraining order or protective order to control the spouse that is causing the threat. Under either circumstance, the court has the ability to place the violating spouse in jail.
5. If my spouse and I agree regarding how are assets are to be divided do we need to involve the court?
Yes. However, the court will usually approve an agreement signed by both parties. A court hearing is no longer necessary in Indiana for that purpose. If both parties sign the agreement the court will then read the agreement and typically approve it if it is signed by both parties. The court’s involvement then would be one of approving the agreement not hearing testimony and issuing an independent order.
6. Can my former or maiden name be restored to me in the divorce?
Yes. It is a very simple request made either at a trial or by agreement of the parties. The name can be returned to the prior married name of the female spouse or to the female spouse’s maiden name at her election.
7. How much does a divorce cost?
The cost of a divorce typically depends on its complexity. If the parties have no children and very few assets, typically a divorce will cost less than $1,000.00 to prepare the paperwork to initiate the divorce and finalize it. If on the other hand the parties have significant assets that require valuation by experts and a long trial to determine how they should be divided, the divorce can be very expensive. Furthermore, disputes relating to children typically cause the attorney to invest a great deal of time in the divorce and cause the cost to be higher.
8. How long will it take for the court to grant my divorce?
In Indiana, the divorce must stay open at least 60 days. The court does not have jurisdiction to grant the divorce until that period of time has passed. However, typically divorces last longer than 60 days, especially if they are contested and a trial is necessary.
9. How is the property divided?
Indiana requires the court to divide the property equitably or fairly. Indiana presumes that a 50/50 division of the assets is fair. However, the court has discretion to give one party more than the other based on factors enumerated in the statute including disparity in earning ability of the parties, waste committed by either party, assets received by gift or inheritance, or premarital ownership of assets.
10. How does the court decide which party should have custody of the child or children?
The Indiana statute governing custody delineates criteria that the court must consider in making its decision as to where the child is to reside. These criteria include the age and sex of the child, the child’s interaction with the parents, siblings, and others, the child’s adjustment to their home, school, and community, and the mental and physical health of the parties involved. The court’s ultimate determination should be what is in the best interest of the child. It considers these factors as well as other factors to make that determination. Typically, the court wants the primary care giver to continue to provide that care after the divorce is over if that is in the child’s best interest.
11. How does the court determine how much time the non-custodial spouse will have with the child?
Indiana has adopted parenting time guidelines that the court is to follow unless it gives reason for deviating therefrom. These are published on the internet and can be reviewed by an individual before they actually initiate their divorce. The court is not to restrict however the parenting time for the non-custodial parent, for instance supervising it, unless the court finds that the mental or physical health of the child would be placed in danger.
12. How does the court determine child support?
Indiana has adopted child support guidelines. These are factors that the court is to follow unless it finds reason to deviate from them. The court will consider the income of the parties, the time the child spends with each party, as well as who is paying medical insurance, and how many other children each of the spouses have to determine a child support amount.
13. What is the difference between a legal separation and a divorce?
A legal separation is very similar to a pending divorce. However, the purpose of the legal separation is to try to resolve the differences of the parties but not dissolve the marriage. The purpose of the divorce is to dissolve the marriage and divide assets and assign responsibilities regarding the children. Typically, a legal separation would involve counseling by the parties to try to resolve their problems. A legal separation can remain open for a period of one year. At any time during that period of time, either party may convert the legal separation to a divorce.
14. Can the court require both parties to engage in counseling?
No. If either party objects to counseling, the court does not have the authority to order marital counseling. The court may however order counseling relating to the care of the children even if both parties don’t agree.
15. What is joint legal custody?
Joint legal custody does not involve the amount of time the child spends with either parent. Joint legal custody simply means that both parents have equal say when determining major decisions regarding the children including education, religion, and elective medical treatment. The court should consider whether the parties can communicate well before it makes a joint legal custody order.